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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 775 of 2007

ANUP LAL YADAV & ANR. …  APPELLANTS

VERSUS

STATE OF BIHAR …. RESPONDENT

WITH

CRIMINAL APPEAL NO. 1163 of 2007

SURANG LAL YADAV …  APPELLANT

VERSUS

STATE OF BIHAR …. RESPONDENT

JUDGMENT

N.V. RAMANA, J.

These appeals are preferred by the appellants/accused  

aggrieved by the judgment and order passed by the Division  

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Bench  of  the  High  Court  of  Judicature  at  Patna  in  Criminal  

Appeal No. 566 of 1993 whereby the High Court affirmed the  

conviction and sentence passed by the 8th Additional Sessions  

Judge, Purnia, Bihar in Sessions Trial  No. 28 of  1978 under  

Sections 302/149, 436/149, 380/149, 323/149, 145 and 147 of  

the Indian Penal Code against them.

2. The prosecution case, in short, is that in the early hours of  

25th September,  1974 appellant  Surang Lal  Yadav (Accused  

No. 5), a member of Santhala community, riding on a horse and  

carrying  a  sword  in  his  hand  entered  the  village  Singhimari  

leading a  mob of  about  300 to  400 persons,  all  armed with  

various  kinds  of  deadly  weapons  such  as  bows,  arrows,  

ballams, bhalas,  kulharis,  dandas and with burning flames in  

their  hands.  The  mob  led  by  accused  Surang  Lal  Yadav  

attacked ruthlessly the Badhyas, a Muslim minority community,  

most of them were migrants from Bangladesh.  The mob went  

on  looting  movable  properties  of  the  villagers,  setting  their  

houses  on  fire,  injuring  and  killing  innocent  persons  

indiscriminately. In the said incident, 14 persons were killed, 47  

houses  were  burnt,  several  properties  were  looted  and  a  

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number of persons were injured. On the basis of a complaint  

given  by  one  Amzad  Ali  (PW  2)  at  about  1  p.m.  on  25th  

September, 1974 to the Assistant Sub-Inspector of Police, an  

FIR was registered and investigation took place. The genesis of  

the case is a Government land which was in occupation of the  

accused persons but allegedly encroached by the Badhyas.

3. After investigation, charge sheet was filed against several  

persons  including  the  appellants  herein.  Most  of  the  other  

accused persons were shown as absconded. The case of 27  

accused persons including the appellants  was committed for  

trial.  The  Trial  Court  framed  charges  against  18  accused  

persons including the appellants. The other accused, who were  

committed  to  face  trial,  had  jumped  their  bail  bonds  and  

absconded.  Finally,  statements  under  Section  313,  Cr.P.C.  

were recorded in respect of seven accused persons only.

4. To bring home the guilt of the accused, the prosecution  

has examined in all  38 witnesses. The informant—Amzad Ali  

was  examined  as  PW  2  who  was  the  eyewitness  to  the  

incident. In his examination, he had narrated the whole incident  

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and identified as many as 33 persons in the mob who actively  

participated in the arson, looting and disclosed their names.

5. PW  1—Dr.  V.N.  Sinha,  the  Civil  Assistant  Surgeon  of  

Sadar Hospital, Purnia who conducted postmortem examination  

on the dead bodies of six persons found sharp edged piercing  

injuries and cutting wounds on the bodies of the deceased and  

he  opined  that  these  persons  died  on  account  of  the  ante  

mortem injuries sustained by them before 48 to 72 hours of  

their death. Postmortem of other eight deceased persons was  

carried  out  by  PW  35—Dr.  T.P.  Chatterjee,  the  Deputy  

Superintendent  of  Kishanganj  Hospital  who also found sharp  

edged piercing and cutting injuries and penetrating wounds on  

the bodies of the deceased. In his opinion, their death occurred  

within 72 hours.

6. The Trial Court, after considering the conspectus of the  

circumstances and materials on record, came to the conclusion  

that  the prosecution has successfully  proved the guilt  of  the  

accused. Accordingly, the Trial Court convicted and sentenced  

the accused to undergo rigorous imprisonment for life for the  

offence  punishable  under  Section  302/149,  IPC.  They  were  

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further convicted and sentenced to undergo R.I. for five years  

for the offence committed under Section 436/149, R.I. for two  

years for the offence under Section 380/149 and R.I. for one  

year  for  the  offence  under  Section  323/149,  IPC.  Accused  

No.  5—Surang Lal  Yadav was further  sentenced to  undergo  

R.I. for one year for the offence punishable under Section 145,  

IPC whereas the other accused were convicted and sentenced  

to undergo R.I. for six months for committing the offence under  

Section 147, IPC. All the sentences were however directed to  

run concurrently.

7. All the seven accused assailed the judgment and order of  

the  learned  Trial  Judge  in  appeal  before  the  High  Court  of  

Judicature  at  Patna.  The  High  Court  allowed  the  appeal  in  

respect  of  two accused persons while  maintaining conviction  

and  sentence  passed  by  the  Trial  Court  against  the  other  

accused. We are now concerned with only three accused who  

challenged the judgment of the High Court before us in these  

Criminal Appeals.

8. Learned  senior  counsel  appearing  for  the  accused/  

appellants  mainly  contended  that  the  identification  of  the  

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appellants as accused by the prosecution witnesses is highly  

doubtful.  He  submitted  that  there  was  enmity  and  rivalry  

between  the  accused  group  and  the  group  of  prosecution  

witnesses. On the fateful day, an open fight broke up between  

the two factions, several persons died and several others were  

injured.  The brother  of  Anup Lal  Yadav (accused—Appellant  

No.  1)  was  also  killed  on  the  same day  and  the  brother  of  

Surang  Lal  Yadav  was  also  murdered  a  day  earlier  to  the  

incident,  in  which  Amzad  Ali  (P.W.  2)  was  an  accused.  

Moreover,  Amzad  Ali  (PW  2)  once  contested  an  election  

against accused Surang Lal Yadav and lost the election. Thus  

there was enmity prevailing between the two groups.  All  the  

prosecution  witnesses  are  interested  witnesses  and  they  

wanted to retaliate by implicating the accused in the present  

case. It  is evident from their  depositions that they had made  

bald and vague allegations against the accused and no specific  

overt act has been attributed to any of the accused by any of  

the  witnesses.  Therefore,  implication  of  accused  for  the  

offences charged against  them is  not  justified  by the Courts  

below and they erred in  convicting the accused on a  wrong  

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assumption  of  facts  without  taking  into  consideration  the  

intrinsic worth of the evidence of prosecution witnesses.

9. Learned  counsel  submitted  that  mere  presence  of  the  

accused  at  the  place  of  incident  would  not  amount  to  their  

unlawful  assembly.  From  the  depositions  of  prosecution  

witnesses,  it  can  be  discerned  that  there  was  no  common  

object among the accused and they did not commit any overt  

act in pursuit of common object. Mere presence of accused with  

arms at the place of incident would not be sufficient to establish  

their involvement in the crime. A majority of witnesses did not  

identify  the accused and there was no clinching evidence to  

show that the appellants-accused shared the common object by  

forming unlawful assembly. The Courts below have totally failed  

to  appreciate  the  fact  that  the  witnesses  deposed  that  after  

noticing the crowd from a far off distance, they hid in the paddy  

field which was chest high, thus their  identifying the accused  

persons from that distance cannot be believed. The Trial Court  

did not pay any heed to the submissions of the accused and  

went on convicting the accused unjustifiably under Section 149,  

IPC  also  and  the  High  Court  committed  a  grave  error  in  

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affirming the same. More particularly, in view of the admitted  

enmity  between  the  parties,  the  informant  (PW 2)  being  an  

accused in the murder case of the brother of Appellant No. 1  

and  in  view  of  depositions  of  witnesses  not  attributing  any  

specific overt act to the accused, the conviction of the accused  

under Section 149, IPC is unsustainable.  

10. Relying on  Bhudeo Mandal & Ors. Vs.  State of  Bihar  

(1981)  2  SCC 755,  learned  counsel  argued  that  in  order  to  

convict an accused with the aid of Section 149, IPC the Court,  

after discussing the entire evidence, must give a clear finding  

as to the ‘common object’ of the unlawful assembly, whereas in  

the case on hand the Trial Court has not given any observation  

with  regard  to  common  object  of  unlawful  assembly.  Also  

placing reliance on  Santosh Vs.  State of  Madhya Pradesh  

(1975)  3  SCC  727,  learned  counsel  submitted  that  each  

member of a mob need not necessarily be held liable for the  

actions of every other member of that mob. In support of the  

contention that the accused could not have been convicted with  

the aid of Section 149, IPC in the absence of clear finding on  

common object of the unlawful assembly, learned counsel has  

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further relied on this Court’s judgments in  Kuldip Yadav Vs.  

State of Bihar (2011) 5 SCC 324;  Shaji Vs.  State of Kerala  

(2011) 5 SCC 423 and Badal Murmu Vs. State of W.B. (2014)  

3 SCC 366.  

11. Learned senior counsel finally submitted that the accused  

appellants have already undergone sentence of  about seven  

years and the incident had taken place about forty years back  

and there is no reason to continue the accused to suffer in jail.

12. On the other  hand,  Ms.  Prerna Singh,  learned counsel  

appearing for the State, vehemently opposed the submissions  

made  by  the  counsel  for  the  accused-appellants.  She  

contended that a strong mob of around 400 assailants entered  

the  village  Singhimari  armed  with  bows,  arrows,  ballams,  

bhalas,  kulharis and  other  deadly  weapons  and  mercilessly  

attacked the villagers, looted their properties and burnt several  

houses. The ghastly attack was led by the accused Surang Lal  

Yadav riding on a horse back wielding a sword in his hand and  

the other accused had actively participated in the heinous crime  

which  resulted  in  killing  of  14  innocent  persons  and  injuring  

several others. The prosecution has examined as many as 38  

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witnesses including PW 2 (Amjad Ali)—the informant who was  

the eyewitness. He deposed in clear and categorical manner  

that the accused Surang Lal Yadav was leading the mob which  

went on a killing spree in the village on the date of occurrence.  

PW 4—Abdul Mokim, another eyewitness deposed that he had  

carried the dead bodies to Kishanganj Hospital in a cart on the  

instruction of police. PW 11—Sk. Samayul deposed that when  

he tried to run away from the mob, accused Sahdeo—appellant  

herein, gave a  lathi blow. Nonetheless, 26 witnesses have in  

clear  terms explained the role  played by Surang Lal  Yadav.  

Accused-appellant Anup Lal Yadav was identified by not a few  

but  14  prosecution  witnesses,  whereas  accused/appellant  

Sahdeo  was  identified  by  11  witnesses.  They  deposed  in  

unequivocal terms that from the paddy field, they had clearly  

seen the occurrence of brutal killing of their kith and kin and  

devastation of  properties  at  the hands of  accused/appellants  

led by Surang Lal Yadav.

13. Strongly rebutting the argument of learned senior counsel  

for the accused/appellants that the Trial Court ought not have  

charged the accused under Section 149, IPC learned counsel  

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submitted that the common intention of the accused appellants  

was writ  large that  they wanted to create havoc in  the area  

occupied  by  the  victims  and  to  fill  terror  in  their  minds.  In  

pursuance of  this  common object,  the  accused used  deadly  

weapons against  the  victims and  killed  14  innocent  persons  

besides injuring several others. She submitted that the law is  

abundantly clear that if an offence is committed by any member  

of  an unlawful  assembly in  furtherance of  common object  of  

that assembly, every member of that unlawful assembly is guilty  

of that offence. Specific overt act of each member of unlawful  

assembly needs not to be proved when the accused are proved  

to be members of that assembly. In support of her contention,  

she relied upon the decisions of this Court in State of A.P. Vs.  

Thakkidiram Reddy (1998) 6 SCC 554;  Yunis Vs.  State of  

M.P. (2003)  1  SCC  425 and State  of  Rajasthan Vs.  Shiv  

Charan (2013) 12 SCC 76.

14. Learned counsel further submitted that after carrying out  

a  thorough  investigation  and  recording  the  statements  of  

eyewitnesses, police has filed the charge sheet. The Trial Court  

had  undertaken  a  detailed  procedure  of  trial  and  examined  

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number of witnesses. Only after conducting a full fledged trial  

and on a careful analysis of the facts and circumstances of the  

case, the Trial Court convicted the accused for the offences for  

which they were charged with. The Trial Court rightly came to a  

conclusion that it may not be possible to attribute specific act to  

every  member  of  unlawful  assembly  of  about  400  people.  

Therefore,  the  Trial  Court  observed  that  “it  is  established  

beyond doubt that there was a mob of about 400 persons with a  

‘common object’  to commit murder of  bharia musalmaan and  

set  their  houses  on  fire  and  loot  their  moveable”.  The  High  

Court  also undertook the exercise of  reappreciation of  entire  

evidence and then only affirmed the conviction and sentence  

order passed by the Trial Court. The High Court observed that  

“the  conduct  of  the  accused  persons  prior  and  during  the  

course of occurrence, clearly demonstrate that  their  common  

object was to commit loot, arson and murder.” Hence, learned  

counsel finally submitted that, the judgments of Courts below  

do not call for any interference by this Court.  

15. We  have  heard  learned  counsel  on  both  sides  and  

perused the depositions of prosecution witnesses in detail and  

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other  material  available  on  record  including  the  opinions  of  

Doctors  who  conducted  postmortem  on  the  dead  bodies.  It  

appears from the record that on the fateful day, a great turmoil  

took  place  in  which  several  innocent  villagers  lost  their  

properties, kith and kin. We notice that some of the accused are  

still  at large. We have carefully gone through the contentions  

raised by the counsel  on either  side.  An examination of  the  

deposition of PW-2 (Amzad Ali) reveals that at about 8 a.m. on  

the day of incident, he had witnessed the devastation carried on  

by the mob under the supervision of accused Surang Lal Yadav  

who was riding on a horse carrying a sword in his hand. He  

categorically stated that he had seen from the paddy field that  

the mob, most of them were undoubtedly Santhals, armed with  

deadly  weapons  and  burning  wooden  pieces  done  to  death  

about 10-12 persons, caused damage to the properties of the  

villagers and set several houses ablaze. He further stated that  

he had identified 33 persons in the mob including the appellants  

herein and disclosed their names. In the cross examination, he  

deposed that he was hiding in the paddy field for an hour from  

where he witnessed the activities of the mob led by Surang Lal  

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Yadav. Another eyewitness PW 3 (Abdul Sattar) also deposed  

that Surang Lal Yadav was carrying a sword in his hand and  

Anup Lal  Yadav (appellant  herein)  had a ‘Bhala’  in his hand  

while they were committing the offences. PW 3 further deposed  

that when he was fleeing with fear, Hopna Santhal (absconded  

accused)  hit  on  his  head with  a  lathi from behind.   PW 13  

(Imazuddin) also in clear terms deposed that Surang Lal, the  

leader  (Mukhiya)  was  instigating  the  mob  saying  kill  these  

bhariya people. Another witness Kalu @ Kalimuddin (PW 16)  

identified  Sahdev  Chamar  (appellant  herein)  among  others.  

Other  prosecution  witnesses  PW  17  (Abul  Kabir),  PW  18  

(Naijiruddin), PW 19 (Abdul Kudus), PW 20 (Ainul Haque), PW  

22 (Samul Haque) who all are also eyewitnesses, narrated the  

roles played by the accused and they all categorically stated  

that Surang Lal Yadav was leading and instigating the mob to  

kill the villagers. Besides these individuals, we have also gone  

through  the  depositions  of  PW  24—Devendra  Pd.  (a  shop  

owner),  PW  27—Muzaffar  Husain  (the  author  of  the  written  

report), PW 28—Dhanik Lal Sah (a witness of inquest report of  

some dead bodies)  and PW 37—Rana Krishna Singh (I.O.).  

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The  evidences  of  these  prosecution  witnesses  are  

corroborating and consistent. PW 38 (Shivaji Singh), ASI has  

categorically deposed about the occurrence of the incident and  

the  roles  played  by  the  accused.  He deposed that  at  about  

10.15  a.m.  on  25th September,  1974  he  visited  the  village  

Singhmari  and  witnessed  the  gathering  of  large  number  of  

Santhals (accused persons) while the persons belonging to the  

victim community were running helter skelter.   The evidence of  

the prosecution is trust worthy and inspires confidence in the  

mind of the Court and by any stretch of imagination it cannot be  

believed that the accused were falsely implicated. Thus, from  

the facts and circumstances of the case, it is evident that the  

huge  mob  was  led  and  instigated  by  Surang  Lal  Yadav  

(appellant)  and  Anup Lal  Yadav and Sahdev Chamar  (other  

appellants)  who had actively  participated in  the carnage and  

slaughtered  innocent  villagers  with  deadly  weapons.  It  is  

worthwhile  to note that  there is  no denial  on the part  of  the  

accused  as  to  their  participation  in  the  atrocities.  In  such  

circumstances,  the  Court  cannot  ignore  the  overwhelming  

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evidence  of  the  prosecution  witnesses  who  categorically  

described the role played by the accused.

16. In  Lalji Vs. State of U.P. (1989) 1 SCC 437,  this Court  

observed:

“Section 149 makes every member of an unlawful  assembly at the time of committing of the offence  guilty  of  that  offence. Thus this  section created a  specific  and  distinct  offence.  In  other  words,  it  created  a  constructive  or  vicarious  liability  of  the  members of the unlawful assembly for the unlawful  acts committed pursuant to the common object by  any other member of that assembly. However, the  vicarious  liability  of  the  members  of  the  unlawful  assembly  extends  only  to  the  acts  done  in  pursuance of  the common objects of  the unlawful  assembly, or to such offences as the members of  the  unlawful  assembly  knew  to  be  likely  to  be  committed in prosecution of that object.  Once the  case of a person falls within the ingredients of   the section the question that he did nothing with   his own hands would be immaterial. He cannot   put forward the defence that he did not with his   own  hand  commit  the  offence  committed  in   prosecution  of  the  common  object  of  the  unlawful assembly or such as the members of   the assembly knew to be likely to be committed   in prosecution of that object. Everyone must be   taken to have intended the probable and natural   results of the combination of the acts in which   he  joined.  It  is  not  necessary  that  all  the   persons forming an unlawful assembly must do   some  overt  act.  When  the  accused  persons   assembled  together,  armed  with  lathis,  and   were parties to the assault on the complainant   party,  the prosecution is not  obliged to prove   which specific overt act was done by which of   

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the accused. This section makes a member of the  unlawful assembly responsible as a principal for the  acts  of  each,  and  all,  merely  because  he  is  a  member of  an unlawful  assembly.  While overt  act  and  active  participation  may  indicate  common  intention of the person perpetrating the crime, the  mere presence in the unlawful assembly may fasten  vicariously  criminal  liability  under  Section  149.  It  must be noted that the basis of the constructive guilt  under  Section  149  is  mere  membership  of  the  unlawful  assembly,  with  the  requisite  common  object or knowledge.

17. In  Yunis Vs.  State of M.P. (2003) 1 SCC 425, learned  

counsel appearing for the appellant therein argued that no overt  

act was imputed to his client and he was being implicated only  

on the basis of Section 149 IPC. This Court ascribing no merit  

to the argument, held that “even if no overt act is imputed to   

a particular person, when the charge is under Section 149   

IPC, the presence of the accused as part  of an unlawful   

assembly is sufficient for conviction”. Accordingly the Court  

in that case observed that the appellant was a member of the  

unlawful  assembly which itself  is  sufficient  to  hold him guilty  

when his presence has not been disputed.

18. Relying on  Lalji Vs. State of  U.P. this  Court in  Subal  

Ghorai Vs. State of W.B. (2013) 4 SCC 607 held;

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“If an offence is committed by a member of the   unlawful  assembly  in  prosecution  of  the   common  object,  any  member  of  the  unlawful   assembly  who  was  present  at  the  time  of   commission  of  offence  and  who  shared  the   common object of that assembly would be liable   for the commission of that  offence even if  no   overt  act  was  committed  by  him.  If  a  large   crowd of persons armed with weapons assaults   intended victims,  all  may not  take  part  in  the   actual  assault.  If  weapons  carried  by  some  members were not used, that would not absolve   them of liability for the offence with the aid of   Section 149 IPC if they shared common object   of the unlawful assembly”.

19. Further, in  State of Rajasthan Vs  Shiv Charan, (2013)  

12 SCC 76 it was opined by this Court:  

“The pivotal question of applicability of Section 149  IPC has its foundation on constructive liability which  is the sine qua non for  its application.  It  contains  essentially only two ingredients, namely, (I) offence  committed  by  any  member  of  any  unlawful  assembly consisting five or more members and; (II)  such offence must be committed in prosecution of  the  common  object  (Section  141  IPC)  of  the  assembly or members of that assembly knew to be  likely to be committed in prosecution of the common  object.  It  is  not  necessary  that  for  common  object  there  should  be  a  prior  concert  as the   common object may be formed on the spur of   the  moment.  Common object  would  mean the  purpose  or  design  shared  by  all  members  of   such  assembly  and  it  may  be  formed  at  any   stage. Even if  the offence committed is not in   direct prosecution of the common object of the   unlawful  assembly,  it  may  yet  fall  under  the   

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second  part  of  Section  149  IPC  if  it  is   established that  the offence was such,  as the   members knew, was likely to be committed  ”  .

20. Thus, by appreciating the entire evidence on record, we  

are unable to accept the contention advanced by learned senior  

counsel  for  the  accused/appellants  that  the  accused  were  

merely passive onlookers who joined the mob out of curiosity  

and  they  had  no  common  intention  and  did  not  share  the  

common  object  of  the  unlawful  assembly.  In  the  light  of  

aforementioned decisions of this Court, we are also not able to  

appreciate the contention of the appellants that no overt act has  

been attributed to  each of  the accused hence application of  

Section 149, IPC is not justified. We have no hesitation to come  

to a conclusion that  the appellants were part  of  the unlawful  

assembly  sharing  the  common  object  of  killing,  rioting  and  

looting the villagers.   Each one of the accused played an active  

role in furtherance of the common object of the assembly and  

the  Courts  below  were  perfectly  right  in  convicting  the  

accused/appellants under Section 149, IPC.  

21. Hence,  in  our  considered  opinion,  the  prosecution  has  

proved its case beyond reasonable doubt. In view of the settled  

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principles  of  law,  once  it  is  established  that  the  unlawful  

assembly  had  a  common object,  it  is  not  necessary  that  all  

persons forming the unlawful assembly must be shown to have  

committed some overt act, rather they can be convicted under  

Section 149, IPC. We, therefore, find  no error in the order of  

conviction and sentence passed by the Trial Court and affirmed  

by the High Court calling our interference under Article 136 of  

the Constitution.

22. The appeals fail and are hereby dismissed.

………………………………….J. (RANJANA PRAKASH DESAI)

…………………………………J. (N.V. RAMANA)

NEW DELHI, SEPTEMBER 26, 2014.

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